COMCO – Introduction of Emarkers for Leniency Applications

The Swiss Competition Commission now allows the setting of paperless markers for leniency applications via online forms. Setting markers is thus faster, easier and more cost-effective. The authority thereby responds to a request also expressed by private practitioners.

Background

In the area of competition law, Switzerland – like many other countries – has a so-called leniency regime. By means of a voluntary declaration, an undertaking can notify an assumed antitrust violation, declare its willingness to cooperate with the competition authorities in the detection of such violation and in turn request full immunity from or at least a reduction in any fines. Under the leniency regime, the so-called marker represents sort of a short form application which triggers the leniency proceeding. It declares the willingness of the undertaking to cooperate by means of a summary application and submits the corresponding requests with regard to possible sanctions. The marker is taken into account for the time of filing the leniency application (time stamp) in case the marker is followed by a comprehensive leniency application, including supporting evidence. This is relevant, since only one undertaking, namely the first to file a leniency application, can benefit from full immunity, if any. However, the chronological order is then also relevant for a possible fine reduction for further leniency applicants.

Functioning of the Emarker

The Swiss Competition Commission (COMCO) now allows the setting of paperless markers for leniency applications via online forms (emarkers). All information required for the marker can now be entered directly into a form on the COMCO website. After dispatch, the completed online form is automatically sent by email to the COMCO Secretariat. The time of receipt of this email is considered to be the time of receipt of the marker. The notifying undertaking will not receive a copy of this email. No confirmation of receipt of the e-mail is sent either. However, after receipt of the emarker, employees of the COMCO Secretariat will contact the notifying undertaking as soon as possible in order to discuss and agree the modalities for submitting the leniency application.

Facilitation for setting confidential markers

With the introduction of paperless emarkers, setting confidential markers becomes possible any time and much more quickly, easily and cost-effectively compared to the existing system with oral recordings at the premises of the authority. Thereby, the COMCO responds to a wish that has also been expressed by private practitioners and is moving in the direction of the eLeniency Programme of the European Commission. To what extent the emarker will work in practice remains to be seen.